LLC v. Joyce DeCormier aka Joyce A. DeCormier et al. (2013)

MEMORANDUM OF DECISION RE MOTION TO DISMISS (# 188)

Defendant, Joyce DeCormier, moves to dismiss this action.   In her motion she asserts that the defendant has the right to be sued on her promissory note by the owner of the debt she owes, not the mere holder of the note.   The substitute plaintiff, Nation Star Mortgage, LLC, opposes this motion.

Litigation History

This case was commenced in October 2009.   A motion to dismiss challenging the subject matter jurisdiction of the court was filed in March 2010, and that motion was denied in April 2010.   Subsequently, the pleadings were closed and the plaintiff filed a motion for summary judgment on September 1, 2010.   Thereafter new counsel appeared for the defendant and the matter was allowed to enter the foreclosure mediation program.   After a lengthy effort, the mediation was unsuccessful.   The plaintiff reclaimed its 2010 motion for summary judgment and defendant's new counsel sought to amend the previous filed answer and special defenses.

The court (Devine, J.), thereafter on August 28, 2012 ordered the plaintiff to submit an affidavit supporting its standing in this matter.   The plaintiff complied with this order and filed a motion to substitute Nation Star Mortgage, LLC as party plaintiff (# 185).   This motion has been granted by the court.   In the interim the defendant filed this renewed motion to dismiss based upon a lack of subject matter jurisdiction.

“A motion to dismiss ․ properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court ․ A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction.”  (Internal quotation marks omitted.)  R.C. Equity Group, LLC v. Zoning Commission, 285 Conn. 240, 248, 939 A.2d 1122 (2008).   “Any claim of lack of jurisdiction over the subject matter cannot be waived;  and whenever it is found after suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter, the judicial authority shall dismiss the action.”  Practice Book § 10–33.

“The motion to dismiss ․ admits all facts which are well pleaded, invokes the existing record and must be decided upon that alone ․ Where, however ․ the motion is accompanied by supporting affidavits containing undisputed facts, the court may look to their content for determination of the jurisdictional issue ․” (Internal quotation marks omitted.)  Cogswell v. American Transit Ins. Co., 282 Conn. 505, 516, 923 A.2d 638 (2007).  “[T]he plaintiff bears the burden of proving subject matter jurisdiction, whenever and however raised.”   (Internal quotation marks omitted.)  Fort Trumbull Conservancy, LLC v. New London, 265 Conn. 423, 430 n.12, 829 A.2d 801 (2003).  “[I]t is the burden of the party who seeks the exercise of jurisdiction in his favor ․ clearly to allege facts demonstrating that he is a proper party to invoke judicial resolution of the dispute.”  (Internal quotation marks omitted.)  May v. Coffey, 291 Conn. 106, 113, 967 A.2d 495 (2009).

“Standing is the legal right to set judicial machinery in motion.   One cannot rightfully invoke the jurisdiction of the court unless he [or she] has, in an individual or representative capacity, some real interest in the cause of action, or a legal or equitable right, title or interest in the subject matter of the controversy.”  (Internal quotation marks omitted.)  Bysiewicz v. DiNardo, 298 Conn. 748, 758 (2010).

It is undisputed in this case, that the owner of the defendant's note and mortgage is the Greenpoint Mortgage Funding Trust Mortgage Pass–Through Certificates, Series 2007–AR2.   The substitute plaintiff's affidavit establishes that it is the holder of the note which is endorsed in blank.   The defendant does not offer any contradictory evidence or affidavit.   Further, the affidavit submitted supports that the substitute plaintiff was assigned the mortgage and it holds rights to service the underlying loan pursuant to a servicing agreement including commencing or continuing the prosecution of this action.   Again, there is no genuine issue of fact with regard to these assertions.

Against this background the court does not find support for the defendant's assertion that she has a right to be sued by the owner of the debt.   Such a proposition is inconsistent with the Connecticut General Statutes § 42a–3–301 which provides that a “ ‘(p)erson entitled to enforce’ an instrument means (1) the holder of the instrument, (2) a nonholder in possession of the instrument who has rights of a holder or (3) a person not in possession of the instrument who is entitled to enforce the instrument pursuant to §§ 42a–3–309 or 42a–3–418(d).  A person may be a person entitled to enforce the instrument even though the person is not the owner of the instrument or is in wrongful possession of the instrument.”  (Italics added.)

Our Supreme Court recently visited this area of the law in the case of J.E. Robert Company, Inc. v. Signature Properties, LLC, 309 Conn. 307, 319, 323 (2013).

In light of this statutory language and this precedent the court finds that it has subject matter jurisdiction to decide this case.   The motion to dismiss is denied.

Cosgrove, J.

Cosgrove, Emmet L., J.